Judgment

Y.V. CHANDRACHUD, J.:- The appellants who are Railway employees, were convicted by the learned Metropolitan Magistrate, Delhi under Rules 118 and 119 of the Defence of India Rules, 1971 and were sentenced to six months rigorous imprisonment. The order of conviction was upheld in appeal by the learned Additional Sessions Judge and in revision by the Delhi High Court with the difference that whereas the former upheld the sentence too, the latter has reduced it to the period already undergone. In this appeal by special leave the legality of conviction is questioned by the appellants.

2. The case of the prosecution is that the appellants are leaders of the Northern Railwaymens Union and that on May 5, 1974 they held a meeting in Tughlakabad Railway Yard inciting railway workers to go on strike from May 8. This is alleged to be in breach of the order passed by the Government India under Rule 118 (1) of the Defence of India Rules, 1971. That rule reads thus:

"118. Avoidance of strikes and locks-outs. - (1) If in the opinion of the Central Government or the State Government it is necessary or expedient so to do for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community, notwithstanding anything contained in any other provisions of these rules, the Central Government may, by general or special order, applying generally or to any specific area and to any undertaking or class of undertakings, make provision -

(a) for prohibiting, subject to the provisions of the order, a strike or lock-out in connection with any industrial dispute;

(b) for requiring employers, workmen, or both, to observe for such period as may be specified in the order such terms and conditions of employment as may be determined in accordance with the order.

Provided that no order made under clause (b) shall require any employer to observe terms and conditions of employment less favourable to the workmen than those which were applicable to them at any time within three months preceding the date of the order."

By sub-rule (2), if any person contravenes any order made under subrule (1) he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

3. The order issued under Rule 118 (1) by the Government of India in its Ministry of Labour on November 26, 1973 recites that in the opinion of the Central Government it was necessary and expedient for maintaining supplies and services essential to the life of the community to prevent strikes in the Railway Services and that therefore "the Central Government hereby prohibits a strike in connection with any industrial dispute/disputes in the said Railway Services in India for a period of six months w.e.f. the 26th November, 1973."

4. In support of its case the prosecution examined three witnesses called S.D. Sharma, Dilbagh Rai and Jasbir Singh. Sharmas evidence is in the nature of hearsay and indeed he admits in so many words that his knowledge regarding the incitement given by the appellants to the Railway workers to go on strike was derived solely from information received by him. The witness admits that he had no personal knowledge that the appellants had held any meeting nor had he heard their speeches. The second witness Dilbagh Rai was in charge of the Police Post at Tughlakabad Railway Station and was entrusted with the investigation of the case. In the nature of things he too has no personal knowledge what the appellants did or said.

5. Jasbir Singh who was in charge of the Diesel Shed at Tughlakabad is in the circumstances the only witness whose evidence could, if at all, help the prosecution to establish the charge that the appellants had contravened the order issued by the Government of India under Rule 118 (1) (a) of the Defence of India Rules, 1971. But even that evidence, in our opinion, is inade